Police harassed man in suspended driving case: judge

CALGARY - A judge has rebuked Calgary police in her finding that officers harassed a man they were investigating, unlawfully searched his car and gave testimony that lacked credibility.

Fuk Kiun Chin was charged with driving while under suspension more than three years ago.

In a written ruling this week, provincial Court Judge Cheryl Daniel found Chin not guilty. She said she believed his story over that of two officers who were involved in the case -- one of them veteran sergeant David Ellement -- who had testy run-ins with Chin in the past.

"This accused gave his evidence in a very detailed and logical fashion," Daniel wrote in her decision. "He seemed honest and sincere and his testimony has a credible ring of truth to it.

"I am left very uncomfortable with the evidence, credibility and good faith of Sgt. Ellement."

The judge heard how Chin's interaction with Ellement began months before the driving charge against him. Both of Chin's sons had been in trouble with the law for alleged gang-related activity.

In July 2007, Ellement was checking whether one of Chin's sons was abiding by his court-imposed curfew. It ended in yelling between the father and the officer. Ellement said Chin took a swing at him through a door, but no charge was laid. A few days later a similar check ended in a similar fashion -- a shouting match between the two.

In September of that year, Ellement said he advised the constables under him to be on the lookout for Chin, whose driver's licence had been suspended. Ellement said he noticed Chin's car was not always at the house and he figured Chin might be driving illegally.

Court heard that on Oct. 7 Ellement went so far as to stake out Chin's car.

Recollections differed on what happened next.

Ellement said he saw Chin pull his car out onto the street. He stopped him, called for backup, charged him and then searched the car to make sure there weren't any valuables in it before it was towed away. Another officer attended the scene and also searched the car.

Chin, however, testified he wasn't in his car and was leaving his house when he was stopped by the officer. He said he was simply walking to a bus stop to go to work. He was charged anyway and protested the search of his car, even though nothing illegal was found.

Daniel sided with Chin's version of events. She ruled the officers had no grounds for the search and she took issue with the way the case was handled by Ellement.

She cited how far the sergeant went to pursue the case. Court heard that Ellement went to the hotel where Chin worked after the charge was laid to speak with his employer.

Chin said the officer warned hotel security about Chin, but Ellement denied that. He testified that he only went to the hotel to further the investigation into the charge.

"Since when does a district sergeant go grossly out of his way to employ himself in such a meaningless routine investigation, when in his own words he had already laid the charge?" Daniel asked.

"I tend to agree with the accused that this behaviour on the sergeant's part is suspiciously akin to harassment."

Daniel noted that Chin filed a complaint with police and Ellement received an official warning for an "unlawful or unnecessary exercise of authority".

Chin's lawyer, Michael Bates, said the judge had to make a difficult decision.

"It was impossible for both of them to be telling the truth. This had to be somebody lied," said Bates.

"I said to her, 'I am asking you to come to a very difficult conclusion because I am asking you as a judge to find that this very senior and experienced police officer was the one who had lied.' "

Calgary police said Thursday they were reviewing the decision.

"We will review the judge's comments and the judge's decision to determine if these are a judge's opinions or if these are allegations," Supt. Kevan Stuart said.

"There are two versions of events and the judge has to choose which version of events they're going to believe."

Bates said his client is "totally happy" and is glad the ordeal is over. He hopes that the Calgary Police Service will look at some sort of sanctions against the officers involved.

"My view is I don't know how they don't do something," he said.

"It doesn't happen very often that we get a scenario where a police officer's evidence is just so resoundly rejected. The findings here really couldn't be any stronger in favour of my client."